Luther Fred Peek, III v. Agnes Sue Meyers--Appeal from 23rd District Court of Matagorda County

NUMBER 13-05-422-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

LUTHER FRED PEEK, III, Appellant,

 
v.

AGNES SUE MEYERS, Appellee.

On appeal from the 23rd District Court of Matagorda County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Castillo
Memorandum Opinion by Chief Justice Valdez

Appellant, Luther Fred Peek, appeals from the trial court's final decree of divorce. His sole point of error is that the court erred in awarding Agnes Sue Meyers a disproportionate share of the community estate. No response to this appeal was filed. We will affirm the trial court's judgment. (1)

The couple married in April 1996. Peek owned two lots (Lots 17 & 18) with a trailer home, a shrimping boat, and two other boats before marrying Meyers. Additionally, in February 1996, Peek made a $5,000 down payment on two adjacent lots (Lots 15 & 16). After the couple married, they purchased another trailer home and placed it on Lots 15 & 16. According to the record, Meyers's separate property was nominal and included mostly personal items. The property acquired during the marriage consisted primarily of: (1) the second trailer; (2) shrimping equipment; (3) vehicles; and (4) various personal items. The couple also amassed debt during the marriage.

The divorce decree granted Peek all of his separate property and an $8,750 reimbursement by Meyers for Lots 15 & 16. The reimbursement satisfied Peek's separate property claim ($5,000) and served as payment for his interest in the land ($3,750). Meyers was awarded Lots 15 & 16, the trailer home that sat on Lots 15 & 16, a vehicle financed in her name, and various personal items. The division of community propertyslightly favored Meyers. The decree does not mention community debt; however, it orders each party to pay the debt owed under the respective spouse's name, with the exception of the note owed on the trailer home occupying Lots 15 & 16. (2) The decree's allocation of the debt is the focus of Peek's point of error. The trial court did not enter findings of fact or conclusion of law.

Based on the pleadings, the amount of community debt varied widely. Meyers claimed that the community debt was approximately $50,000 in her inventory filed in August 2002. Peek claimed that the community debt was approximately $123,000 in his inventory filed in October 2003. The community debt is composed primarily of unpaid credit card balances held in Peek's name. During the trial, Peek did not marshal any evidence to show that the credit card balances were incurred during the marriage or used to purchase items that enhanced the community estate.

In granting a divorce, a trial court must divide the community estate "in a manner that the court deems just and right." Tex. Fam. Cod. Ann. 7.001; See Wilkerson v. Wilkerson, 992 S.W.2d 719, 722 (Tex. App.-Austin 1999, no pet.). We start with the presumption that the trial court properly exercised the broad discretion it is given to divide the community estate and will reverse only if we find a clear abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). A trial court abuses its discretion if the property division is manifestly unjust and unfair, O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.-Austin, 2002, no pet.), but the estate need not be divided equally as long as the division is equitable and justified by the circumstances. Murff, 615 S.W.2d at 698-99; O'Carolan, 71 S.W.3d at 532. The complaining party must show that the trial court abused its discretion in the overall division of the entire estate. See Murff, 615 S.W.2d at 699-700.

When, as here, the trial court does not make findings of fact or conclusions of law pertaining to the unequal division of the property, we presume the court considered the entire circumstances of the parties in making the division. See Murff, 615 S.W.2d at 698;Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.-El Paso 1998, pet. denied). Peek has not shown from the record that the division of debt was so disproportionate as to be manifestly unjust under the circumstances. See Capellen v. Capellen, 888 S.W.2d 539, 542-45 (Tex. App.-El Paso, 1994, writ denied); Waggener v. Waggener, 460 S.W.2d 251, 253-54 (Tex. Civ. App.-Dallas 1970, no writ). Therefore, he has failed to overcome the presumption that the trial court properly exercised its discretion in dividing the community. See Murff, 615 S.W.2d at 698; Kimsey, 965 S.W.2d at 704. Peek's sole point of error is overruled.

The judgment of the trial court is affirmed.

________________

ROGELIO VALDEZ

Chief Justice

 

Concurring Memorandum Opinion by Justice Castillo.

 

Memorandum Opinion delivered and

filed this the 3rd day of August, 2006.

1. This is the second divorce decree. The first one was vacated upon the granting of a motion for new trial.

2. The trailer home was jointly financed, but retained by Meyers. She was therefore assigned that debt.